On Friday, “the United States International Trade Commission (USITC, or just ITC) handed down its final ruling on Apple’s July 2011 complaint against Samsung. Over the last few months the Commission, the U.S. trade agency’s highest-level decision-making body, conducted a thorough review of two preliminary rulings by Administrative Law Judge (ALJ) Thomas B. Pender, and concluded that Samsung infringes the following two Apple patents, which it failed to prove invalid and with respect to which Apple established the existence of a domestic industry,” Florian Müller reports for FOSS Patents.

“An import ban has been ordered and will take effect at the end of the 60-day Presidential review period,” Müller reports. “Even though there may be expectations in South Korea that Samsung should benefit from a Presidential veto only because Apple just won one last Saturday, “me too” doesn’t make sense here because standard-essential patents (SEPs) like the one over which the ITC wanted to grant Samsung an exclusion order come with FRAND (fair, reasonable and non-discriminatory) licensing obligations and can’t be worked around without prohibitive switching costs, while non-SEPs are traditional exclusionary rights and, most importantly, can be worked around. In fact, Samsung presented to the ITC products that it said (and Judge Pender agreed) don’t infringe. If legality is so readily available, a veto isn’t warranted.”

Müller reports, “The lack of information on Samsung’s workarounds also makes it difficult at this stage to assess the effect of today’s decision on the prospects for a settlement of the wider, global dispute between these two players. There’s no question that there will be a settlement at some point. What’s unclear is whether the parties have enough guidance from the courts at this stage to reach an agreement. And sometimes it takes more than guidance: infringement can be a viable business strategy as long as right holders can’t obtain meaningful remedies. For example, almost a year ago a jury found Samsung to infringe half a dozen intellectual property rights held by Apple, and the court didn’t overturn any of these liability findings, but Apple has not yet received even one cent of damages (a limited damages retrial is scheduled for November) and was denied a permanent injunction. Based on how today’s appellate hearing relating to that injunction request went, I believe Apple is clearly on the winning track…”

They obviously don’t. I thought my comment was well written. Wasn’t over the top (especially compared to some of the anti-Apple comments) and did not insult anyone. I also posted a link to Florian Müller’s article which they did not post either.

So, why did they not post my comment? I’m totally convinced the NYT is working their own agenda.

The Obama Administration (NOT Obama himself!) has to decide whether to let it stand or not. The Administration could veto the ban outright.

The Customs Department has to decide if it is going to enforce the ban. The ITC does not have legal authority to *force* the Customs Department to enforce the ban. Customs is *supposed* to go along and enforce the ban, but it sometimes does not. (Take the case of where Microsoft won a ban on some Samsung devices and Customs is refusing to enforce the ban.)

Samsung can appeal the ruling (if The Administration does not veto it and Customs decides to enforce it) in open court. If this happens, and a judge friendly to Samsung (Koh, I’m looking in your direction!) issues an injunction against the ban until it gets all the way through the courts, then, even if Apple wins in the end, the ban might not go into effect for *several* years — well after any infringing devices are dinosaurs in today’s mobile tech world, and not even used anymore let alone being imported.

So…
This is a significant step in favor of Apple. But “final”? Hardly.